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Contempt of Court for A Layman

Sandali Sharma [1]


 

Introduction

In a country where even advocate-activists can get the concept of contempt wrong, how far can we go when it comes to criticizing our judiciary? The word ‘contempt’, in its most basic sense, refers to the emotion of feeling worthless usually rooting from being deprived of regard or consideration. Being a single integrated system to deliver justice, the judiciary in India is unarguably far from being worthless. Is it still subjected to disregard and in consideration? In this article, the concept of contempt of court would be critically analyzed and reasons would be put forth regarding the importance of the topic for people who are closely associated with the legal field and those who are not.


The mechanism of judicial bodies laying guidelines against unsolicited disrespect traces back centuries. It is given that the judiciary is a superior body and is often referred to as a “saviour” of the citizens, which makes it worthy of appreciation and respect. The aforementioned age-old custom was made into a law, in its true sense, when the Indian constitution was put together and enacted. It was an implied restriction on the fundamental right of Speech and Expression, as mentioned in Article 19 as well as Article 129 and 215 of the Constitution of India. The explanation and objective regarding contempt of court being punishable are provided in the Contempt of Courts Act, 1971.


For someone who is not familiar with the Constitution and its provisions, the simpler explanation would be that the judiciary is a body built on enforcing constitutionality and protecting us as citizens, our life and liberty; hence, we are indebted to it. It coincides with the concept of equality that the respect that the constitutional framework guarantees us, we owe it back to the judiciary. While obvious negativity and remorse displayed by the losing party in a case is understandable, it is futile and, in case of being communicated in a disrespectful way towards a court of law, can lead to both punishment and fine.


A notable instance where the Supreme Court, on behalf of the whole legal fraternity, raised its voice against unwarranted and toxic criticism being thrown at it was when a comedian’s tweet was called out for being utterly distasteful and KK Venugopal expressed his consent towards a criminal contempt of court proceeding on account of the same.[1] Not only was the Supreme Court described as “a joke” but, it was also insinuated that the Indian judiciary was under the control of the ruling party. It was a rather harsh comment which was targeted against SC’s independent and impartial status.


The Constitution of India provides for two kinds of contempt namely, civil and criminal. Civil contempt is defined as "willful disobedience to any judgment, decree, direction, order, writ or other processes of a court or willful breach of an undertaking given to a court"[2] on the other hand, criminal contempt is concerned with interfering with judicial proceedings.


Origination of the Principle

The first mention of the concept of contempt was observed in the English Law, which referred to it as “contemptuous curiae” which means disrespect in presence of the court. English Law’s objective behind coming up with the principle was to take a step towards having a disciplinary power while it worked for delivery of justice among the citizens. It was considered extremely important that the public held certain respect towards the judiciary and what it professed. It was made clear that the one who failed to comply with these basic standards was bound to be disciplined by the court. In the year 1926, the first-ever act regarding contempt of court was passed to state clearly, the importance and punishment for done contempt. Though it was unarguably ambiguous and rather basic, it was a remarkable improvement in implementing laws for the safeguarding of the judiciary. When Britain started dominating the Indian Subcontinent, the Charter Act of 1726 was issued, as a result of which a Corporation in each Presidency Town was entrenched. This marked the definitive advent of British Laws in our nation. The Supreme Court of Judicature which was introduced in the year 1774 overthrew the power of other existing courts in this territory. Later, when the entire hierarchy of the judiciary came to function, with the inclusion of High Courts under the Supreme Courts in England, they were given the power of holding citizens against contempt.


In Legal Remembrancer v. Matilal Ghose, it was held that contempt of a lower court can be punished by a High Court since it was known to be a disregard in the common law.[3] This power with the High Court was also explained to be arbitrary, unlimited, and controlled.


Consequently, India achieved independence; the constitution was enacted which allowed the Supreme Court of India to function along with High Courts in all states with the power to punish anyone who commits the offence of contempt. However, this law was much more controlled and limited as it specified which courts had what power and what could be the highest level of punishment given for the offence. It also made its way to become one of the reasonable restrictions on the fundamental right of Freedom of Speech.[4]


It is extremely important to mention here, the efforts of H N Sanyal who, with the help of his committee, examined the laws concerning contempt and came up with realistic ideas for improvement. It is owing to him, that the Contempt of Court Act, 1971 came into existence and is functional to this day.


The Law, The Good and The Unacceptable

The Contempt of Courts Act, in Section 2 explains contempt to be of different kinds namely, civil and criminal. The former refers to being disobedient, willingly as a response to certain judgments, decree, direction, order, writ, or other process carried out by the court or being disobedient in terms of executing a breach of a certain undertaking prescribed by it. The latter deals with the publication, in words or writing or by signs, to scandalize, prejudice or interfere with the court’s proceeding, judgment or authority.

Criminal Contempt:

Section 2(c) defines criminal contempt as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

● Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or

● Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or

● Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.


This provision was used against Prashant Bhushanhis year when he was found engaged in issuing statements against the Supreme Court. It was discussed how publishing a statement in the public domain regarding his thoughts about the court playing an “active role in the destruction of democracy” was a contention to lower the authority of the Supreme Court, hence was a criminal act of contempt. Here, the defence of practising free speech was used by the defendant. The court explained how free speech did not constitute degrading remarks about a court of law. Attempts were made by the Karnataka High Court to elaborate on the provisions under contempt law in the case of Balasubramaniyam v. P. Janakaraju & Anr[5]. The bench issued in its judgment, that court orders were supposed to obeyed unless and until they were cancelled through the process of appeal/revision. It was reinstated that willful breach of an undertaking would amount to civil contempt. It was made clear that “No litigant can be allowed to wriggle away from a solemn undertaking given to the Court, as it will open dangerous trends and defeat the very purpose of giving undertakings to Court.”


It becomes pertinent to ask till what extent would criticism against a court be criminalized taking into account the fact that it might just not be unwarranted. If India always believed that constructive criticism and change thereafter was the building block of our democracy, then where does contempt of court draw its line? What may bother the general public is the absence of the same specified extent of the law which makes them vulnerable to punishment even when their sole motive could be accurate journalism or purposeful expression and reporting. Discipline when forced leads to a restriction on free expression which in turn puts a stop on the evolving process on not just the judiciary, on the said democracy as a whole. Another extremely important aspect of this case was the clause regarding “reasonable dissent”.


An extremely common justification used for laws punishing contempt is taken by Article 19(2) which allows reasonable restrictions on speech to be made on the grounds of “contempt of court”. The Right to dissent is a fundamental right provided to citizens under the same article. Here debate, dissent and criticism are explained to be extremely significant for the democracy to work efficiently. In the case of Justice (Retd.) Markandey Katju vs The Lok Sabha & Anr. [i], it was held that “Article 19(1)(a) of the Constitution of India guarantees to an individual, the freedom to hold and publicly express dissenting opinions without fear of any form. It is the duty of the Legislature to respect and promote respect for such a right and not to curtail the same, either by enacting legislation's that run contrary to Article 19(2) or to pass a resolution, condemning the exercise of such free speech.”


In the case of Bar Association v. Union of India & Anr[6], the Supreme Court dwelled into the constitutional powers vested in it under Article 129 read with Article 142(2) of the Constitution of India and the power of the High Court under Article 215 of the Constitution to punish for contempt and held as follows:-

Supreme Court explained that as per the aforementioned constitutional powers, no act of parliament can take away the inherent jurisdiction of the Court of Record to punish for contempt and the Parliament’s power of legislation on the subject cannot be put to use with any motive which falls even close so as to degrade the status and dignity of the Court.


Now it needs to be discussed, instances when one would not be guilty of these charges. While the court has had, historically enough, accounted for an array of activities within the three categories of criminal contempt, the truth rarely persists as the ultimate defence. Though it might not amount to being the strongest suit, truth still accounts for being a valid and justified counter agreement.

How to express with a lesser probability of being accused:

The time frame of one’s thoughts being expressed starts playing a significant role in the case of criminal proceedings of contempt. The criticism should be considered fair when it is published or released after a certain case is already disposed of. This is precisely where part of the basis and objectives of communication gets hampered owing to the contempt law. When criticism only gets communicated after a certain judgment is passed, it becomes lethargic to point out the differences now. It has been putting up a fight against citizens’ civil liberties which is affecting the system on a larger scale than one is made to think. The factor of its interpretation being so wide would put every expression, article, speech, posts on a stand for its individuality and purpose which is why in the sight of a person wrongfully accused and punished, contempt laws, even with its heart in the right place, seems as if it were a tool to stroke a court’s ego and stature.


Concluding and Recurring Arguments

After all, is said and done, India needs to determine what awards the judiciary its powers.It is already understood that judicial power is bound to thrive in the faith that the citizens put in it. Confidence and criticism are healthier when balanced which is precisely what lies behind the contempt of court laws. Newer perspectives gain weight when their objective is to introduce the system to better and evolving possibilities and not just upholding the judiciary’s sanctity. Hence, the question still remains; How ready is our judiciary for an open conversation? Right to free speech guarantees to us, liberty and India has had enough instances to believe that this right gets abused extensively on multiple occasions. Taking this into account, it needs to put forth how statements issued in a mindset of rage and remorse based on false facts with the objective to degrade a court’s stature are not ones to be relied on. The thin line between raising a voice and gross ignorance needs to be discussed, inside the courts and outside. Therefore, while the general public expects the judiciary to keep its rigidity aside and give them an ear, it needs to be taken into consideration, the reason why laws against contempt were formulated in the first place. With our judiciary constantly evolving, what the law community rightfully asks for, is support and communication, not falsification and propaganda.


Even when it clings to age-old principles and the rigidity associated with them, the law is usually assumed to be rational and deprived of myth. The rigidity discussed in this article is obviously a misfit in India today and the ideals it wants to follow. The Law of Contempt stands somewhere in between of the essential principles which cannot be let go off, and modern problems that citizens and their lawyers believe to be significant hurdles in the administration of justice in the country. While the presence of The Contempt of Courts, 1971 is extremely important as it protects Orders, Writs and Judgments from willful disobedience of individuals, it is prone to obstruct social justice and equality when the fine of a convicted offender is valued at Re. 1 and mere perception of a citizen expressed in form of a joke are asked for a valid defence. This is precisely where the law starts to lose its inherent principles. Inability to tolerate criticism never stood within the power of the Supreme Court. Therefore, it is about time the law gets revisited and important lines are drawn to cancel out unimportant rigidity and expression is given a valuable recognition. India already respected its judiciary, it was never needed to be forced.

[1] Article 129 of the Constitution gives the Supreme Court the power to initiate contempt cases on its own, independent of the motion brought before it by the AG or with the consent of the AG. [2] Section 2, Clause 2 of the Contempt of Courts Act, 1971. [3] ILR 41 Cal 173: (AIR 1914 Cal 69). [4] Article 19 (2), The Constitution of India. [5] 2004 (5) Kar. LJ 338 [6] (1998) 4 SCC 409



 

[1] Sandali Sharma is an undergraduate from Symbiosis Law School, Hyderabad. For any discussion related to the article, she can be contacted via mail: sandali.a.sharma@gmail.com


Preferred Citation – Sandali Sharma, “Contempt of Court for a Layman", Syin & Sern Law Review, Published on 10th February 2021.

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